Thursday, 11 August, 2022
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CCMA victory for employee dismissed over vaccine refusal

An employee who refused to have a COVID-19 vaccine and was subsequently dismissed has been awarded a year’s salary as compensation in a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling.

The CCMA found the workplace mandatory vaccination policy to be unlawful, and that her dismissal for refusing to get the jab was unfair, reports TimesLIVE.

However, Advocate Vusi Masango, who represented Kgomotso Tshatshu against Baroque Medical, said the CCMA victory might be the start of a long court battle, potentially holding up payment of the funds to his client.

“The chances are this will be reviewed at the Labour Court,” he said.

Tshatshu had apparently had an adverse reaction to a flu jab a decade ago and was resistant to the COVID-19 vaccine, which was in conflict with her company’s mandatory vaccination policy.

Senior CCMA commissioner Richard Byrne said: “An employer has no right to formulate any COVID-19 vaccination mandate. It is the prerogative of government.

“Everyone, not just employees of a particular company, is equal before the law. The state has not unfairly discriminated against anyone in terms of vaccine policies. No legislation has been passed requiring all employees or citizens be vaccinated.

“When considering the equality clauses, freedom and security of the person, limitations of rights, the lack of reasonableness of the rule, government’s response to and the regulations it issued, it becomes unmistakably clear the right to issue any law of general application in respect of COVID-19 vaccinations rests with the government.”

The rule regarding vaccinations was therefore unreasonable.

“The dismissal was unconstitutional. It should not have occurred and the applicant has lost employment she has had for years due to, in effect, the employer’s breach,” the judgment read.

He ordered that the employee should be paid 12 months’ compensation, which amounts to about R279,000.

Masango said if the ruling were reviewed, the award could be suspended, pending the outcome.

His firm had represented her on a pro bono basis and if the matter went to the labour court, it would be difficult for her to afford a legal representative.

He said according to his experience, the review could take a year.

Law firm ENS Africa said the CCMA ruling was in contrast with a previous ruling by another commissioner relating to the same employer and the same mandatory vaccination policy.

In the first CCMA dispute involving Baroque Medical, ENS Africa said the CCMA found the employer was justified in implementing mandatory vaccination in the workplace as a mechanism to curb absenteeism related to COVID-19 and that a failure to vaccinate led to a substantively fair dismissal for operational requirements.

Tshatshu, who produced medical certificates from doctors regarding her health, challenged the policy’s implementation. She argued that meetings were mostly being done remotely, she had a laptop and worked alone in a boardroom, and social distancing and other protocols were in place. She did not see the need for the vaccine mandate.

Commenting on the ruling, the National Employers Association of SA said it has always believed the directives and codes dealing with COVID-19 in the workplace were unconstitutional and, apart from infringing on the constitutional rights of employees, held serious liability risks for employers electing to implement a mandatory vaccination policy.

 

TimesLIVE article – CCMA victory on vaccinations may be the start of a long court battle, lawyer fears (Open access)

 

See more from MedicalBrief archives:

 

Vaccine workplace dismissals: CCMA confirms 117 disputes lodged

 

CCMA: Zero-severance retrenchment for jab refusal is fair

 

CCMA upholds ‘anti-vaxxer’ dismissal but awards compensation for WhatsApp firing

 

 

 

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